CITATION: Neill v. Boudreau, 2007 ONCA 30

DATE: 20070119

DOCKET: C44585

COURT OF APPEAL FOR ONTARIO

RE:

DOROTHY NEILL (Applicant (Respondent in Appeal) – and – MARK BOUDREAU (Respondent (Appellant))

BEFORE:

GOUDGE, BLAIR AND LAFORME JJ.A.

COUNSEL:

Eric Shapiro

for the appellant

Sarah Trach and Jennifer Hoshizaki

for the respondent

HEARD & ENDORSED:

January 17, 2007

On appeal from the order of Regional Senior Justice John F. McCartney of the Superior Court of Justice dated September 1, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant raises two issues: the imputation of income, and whether there should be a retroactive award and if so how far back it should go.

[2] In our view the finding of imputed income made at trial and sustained on appeal was well grounded in the evidence. There is no basis for us to interfere with it here.

[3] As to retroactivity, while this case was decided below prior to the Supreme Court of Canada decision in DBS v. SRG, the trial judge carefully considered the relevant factors, including particularly the payor’s conduct in deliberately not disclosing his true financial situation. There is no reason to interfere with the decision that a retroactive award was necessary.

[4] Counsel agree that the notice given by the respondent of a desire to renegotiate child support in 1997 constitutes effective notice for the purposes of DBS. In our view the subsequent agreement cannot have the effect of erasing that notice, because it was based on deliberately supplied misinformation by the appellant. That also explains why the respondent did not commence this application until 2003. We therefore conclude that the retroactive award is properly considered as one, that for the purposes of DBS, goes back to the date of effective notice but not beyond.

[5] The appeal is dismissed. Costs to the respondents fixed in the amount of $5,000 plus disbursements.